Madras High Court
Thalappakattu Biriyani And Fast Food vs M/S.Thalappakatti Naidu Ananda Vilas on 1 August, 2011
Author: R.Banumathi
Bench: R.Banumathi, B.Rajendran
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 01.08.2011 CORAM THE HON'BLE MRS. JUSTICE R.BANUMATHI and THE HON'BLE MR. JUSTICE B.RAJENDRAN O.S.A.Nos.199 to 201 & 217 to 219 of 2011 O.S.A.Nos.199 to 201 of 2011: Thalappakattu Biriyani and Fast Food temporarily called as "Chennai Rawther Thalappakattu Biriyani" rep by its Partner No.32, Jawaharlalr Nehru Road, Koyambedu Round Tana, Chennai-600 107. ... Appellant Vs. M/s.Thalappakatti Naidu Ananda Vilas Biriyani Hotel, rep by its Partner N.Dhanabalan No.15, East Car Street, Dindigul. ... Respondent O.S.A.Nos.217 to 219 of 2011: M/s.Thalappakatti Naidu Ananda Vilas Biriyani Hotel, rep by its Partner D.Nagasamy No.15, East Car Street, Dindigul. Vs. Thalappakattu Biriyani and Fast Food temporarily called as "Chennai Rawther Thalappakattu Biriyani" rep by its Partner No.32, Jawaharlalr Nehru Road, Koyambedu Round Tana, Chennai-600 107. ... Respondent Original Side Appeal is filed under Order XXXVI Rule 1 of the Original Side Rules read with Clause 15 of the Letters Patent against the common order in O.A.Nos.48 & 49 of 2011 in C.S.No.203 of 2007 and O.A.No.54 of 2011 in C.S.No.32 of 2011. For Appellant in : Mr.Arvind P.Datar, OSA 199 to 201/2011 Senior Counsel and Respondent in for OSA 217 to 219/2011 Mr.A.A.Mohan For Respondent in : Mr.R.Muthukumarasamy, OSA 199 to 201/2011 Senior Counsel and Appellant in for OSA 217 to 219/2011 Mr.Jinasenan COMMON JUDGMENT
R.BANUMATHI,J Challenge in these appeals is the common order of learned Judge in O.A.Nos.48 and 49 of 2011 in C.S.No.203 of 2007 and O.A.No.54 of 2011 in C.S.No.32 of 2011 restraining the Appellant-Defendant from using the mark "Thalappakattu" or any other mark deceptively similar to Plaintiff's mark "Thalappakatti" in any one of the restaurant opened after 19.11.2008 and that Defendant shall be entitled to use the same only in respect of four shops that were in existence as on the date 19.11.2008.
2. Plaintiff's predecessors late P.Nagasamy Naidu was carrying on business in the name and style of "Thalappakatti Naidu Ananda Vilas Biriyani Stall" and after the demise of P.Nagasamy Naidu, N.Dhanabalan, son of P.Nagasamy Naidu, father of the Plaintiff continued the business in the name of "Thalappakatti Naidu Ananda Vilas Biriyani Hotel" since 1978 and carried on business as Proprietor. The said business was converted into partnership firm in April 2002 by inducting the Plaintiff who is the son of Dhanabalan and grandson of late Thalappakatti P.Nagasamy Naidu as partner. The food preparations made and served in "Thalappakatti Naidu Biriyani Hotel" have acquired enormous popularity throughout Tamil Nadu and other States by virtue of extensive tourist flow through Dindigul Town as it is the transit point for Kodaikanal Hill Resorts and temple town Madurai and business travellers.
3. Case of Plaintiff is that the trade mark and trading style "Thalappakatti Naidu Biriyani Hotel" has acquired the secondary meaning to denote and connote the product of the Plaintiff which assures to the public a unique taste and standard in the food preparations. The name "Thalappakatti" is so popular that it has become the household name throughout Tamil Nadu. Plaintiff has also spent huge amount for propagating the mark "Thalappakatti". Excepting the Plaintiff no one has any right to use the trade mark and trading style.
4. Defendant has commenced adopting the identical or deceptively similar trade mark and trading style "Thalappakattu" in respect of their hotel business. In order to deceive the general public and to make them believe the food preparations served at the Defendant place has the connection with Plaintiff's hotel. Defendant's has no manner of right to adopt and use the offending trade mark or trading style "Thalappakattu". In view of the extensive popularity and reputation of the trade mark and trading style "Thalappakatti Naidu Biriyani Hotel", a negligible and irrelevant change in the last letter of the name both in Tamil and English would make no difference and deceive the general public and make them to think and believe that the food served by the Defendant is from the Plaintiff. Therefore, Plaintiff firm had filed C.S.No.203 of 2007 for permanent injunction restraining the Defendant, his men, agents or anyone claiming under them from infringing or passing off the trade mark or trading style "Thalappakatti Naidu Biriyani Hotel". Along with the suit, Plaintiff also filed O.A.Nos.298 and 299 of 2007 seeking for interim injunction.
5. Defendant resisted the applications contending that Defendant has established the business and gained extensive popularity among the public in respect of third trade mark "Thalappakattu Biriyani & Fast Food". It is further alleged that the word "Thalappakattu" means turban which is the common name and therefore, Plaintiff cannot claim exclusive right over the name "Thalappakatti". Defendant has further alleged that without choosing to co-operate with the trial, Plaintiff has come out fresh application which is devoid of merits. According to Defendant, Defendant is using entirely different colour combination "yellow" and using the name "Chennai Rawther Thalappakattu Biriyani" with a holy number of Mohamed "786'. Insofar as the registration of trade mark, Defendant has alleged that Plaintiff has managed to collude with the concerned officials of the Trade Mark Registry and has illegally obtained the registration of the trade mark and Defendant has preferred an appeal before the Appellate authority and the same is pending adjudication.
6. After elaborate consideration of the facts and law on 07.11.2007, learned single Judge found that Plaintiff is the prior user who had established the usage of the name "Thalappakatti Naidu Biriyani Hotel" atleast from 1989 although there are overwhelming records to show that Plaintiff and their predecessors have been using the same from 1957. Learned Judge further found that Defendant in the suit had commenced their business only in 2005 and on the basis of the materials produced held that the Plaintiff has proved that they developed the goodwill and reputation and on those findings, learned Judge granted injunction and allowed O.A.Nos.298 and 299 of 2007 in C.S.No.203 of 2007.
7. Alleging that there is disobedience of the order, Plaintiff had filed Contempt Petition in C.P.No.90 of 2008. In the mean while, being aggrieved by the grant of injunction, Defendant filed appeals in O.S.A.Nos.223 and 224 of 2008 against the orders passed in O.A.Nos.298 and 299 of 2007. Division Bench after going into merits of the case and on the basis of the suggestion given by the Defendant, disposed of both the appeals [O.S.A.Nos.223 and 224 of 2008] with an observation that Defendant is permitted to change the present name in its name boards, wrappers as well as pamphlets to "Chennai Rawther Thalappakattu Biriyani" purely as an 'interim arrangement' without prejudice to the contention of both the parties in the suit and directed the single Judge to dispose of the suit [C.S.No.203 of 2007) on merits within a period of three months.
8. Case of Plaintiff is that Defendant filed written statement with an enormous delay and that the delay was condoned with the cost of Rs.2000/- on 17.06.2009. After framing of Issues, trial commenced and Plaintiff has alleged that Defendant did not co-operate for early disposal of the suit and P.W.1 continues to be in the box for more than ten months. In the mean time, Defendant is alleged to have expanded its business by opening new branches in Chennai city in various places. The Defendant is also said to have hosted the website titled www.thalappakattu.com in the Internet which according to Plaintiff would amount to clear contempt of the order passed in O.S.A.Nos.223 and 224 of 2008.
9. In the mean while, in order to protect the trade mark and trading style, Plaintiff had applied for registration of the trade mark "Thalappakatti Biriyani Hotel" on 23.12.2005 in Application No.1408388. Defendant has also applied for registration of trade mark "Thalappakattu Biriyani & Fast Food" by its application No.1385141 before the Deputy Registrar of Trade Marks, Government of India, Chennai. After considering the submissions of both sides, the Deputy Registrar of Trade Marks, Government of India, Chennai by its order dated 22.09.2010 has directed registration of the trade mark "Thalappakatti Biriyani Hotel" of the Plaintiff and application for registration of the trade mark by the Defendant was rejected.
10. Based on the subsequent developments that Plaintiff had obtained registration of the trade mark, Plaintiff had filed modification Petition to modify the order passed in O.S.A.Nos.223 and 224 of 2008 restraining the Defendant from using the trade mark "Thalappakattu". Modification Petition came up before the Division Bench on 06.01.2011 and after hearing the arguments, the Division Bench permitted the Plaintiff to withdraw the modification Petition and granted liberty to the Plaintiff to file appropriate application before the single Judge. Stating that Plaintiff has registration of trade mark "Thalappakatti Biriyani Hotel" and that Defendant is infringing its registered trade mark, Plaintiff has filed fresh infringement suit in C.S.No.32 of 2011. In that suit, Plaintiff had also filed application O.A.No.54 of 2011 seeking for temporary injunction restraining the Defendant from in any manner infringing the Plaintiff's trade mark and trading style "Thalappakatti Biriyani Hotel". Plaintiff had also filed two applications O.A.Nos.48 and 49 of 2011 in C.S.No.203 of 2007 seeking for injunction restraining the Defendant from using the trade mark "Thalappakatti Biriyani Hotel" by using deceptively similar mark and also from opening any new outlets infringing the trade mark "Thalappakatti Biriyani Hotel" by using the offending trade mark "Thalappakattu" or any other mark which has similar or in any way deceptively similar to the Plaintiff's registered trade mark.
11. Resisting both O.A.Nos.48 and 49 of 2011 filed in C.S.No.203 of 2007 and application in O.A.No.54 of 2011 filed in the infringement suit [C.S.No.32 of 2011], Defendant has filed counter contending that Defendant is the prior user and registration of trade mark will not have any bearing on the Defendant who is continuous user of the name "Chennai Rawther Thalappakattu Biriyani". Defendant further alleged that Plaintiff has no locus standi whatsoever in respect of the trade mark either "Thalappakattu" or "Thalappakatti" as the mark "Thalappakattu" is developed and promoted by Defendant and gained extensive popularity in respect of the trade name "Thalappakattu" and only thereafter, Plaintiff has made an attempt to utilise the goodwill of the trade name "Thalappakatti" and started running their hotel business using the trade name "Thalappakatti". Defendant averred that Plaintiff has submitted their application before the Trade Mark Registry belatedly only after the Defendant submitted their application in September 2005. As against the order of the Deputy Registrar of Trade Marks dated 22.09.2010, Defendant preferred an appeal before the Intellectual Property Appellate Board and the same has been numbered as Application No.OA/58/2010/TM/CH/9532 and is pending adjudication. When that being so, Plaintiff cannot take advantage of the erroneous, illegal and wrong order passed by the Deputy Registrar of Trade Marks granting registration of trade mark infavour of the Plaintiff.
12. Further according to Defendant, the order dated 19.11.2008 passed in O.S.A.Nos.223 and 224 of 2008 is the consent order passed by the Court whereby as interim arrangement, Division Bench has permitted the Defendant to use the name "Chennai Rawther Thalappakattu Biriyani". Defendant alleged that Plaintiff without choosing to co-operate with the trial of the suit in C.S.No.203 of 2007 has come out with fresh applications [O.A.Nos.48 and 49 of 2011] with a malafide intention and there is no bonafide.
13. Insofar as the infringement suit in C.S.No.32 of 2011 and the application in O.A.No.54 of 2011 thereon, Defendant has filed counter stating that Plaintiff has illegally obtained registration of trade mark which is under challenge before the Intellectual Property Appellate Board. Plaintiff has not made out any prima facie case or balance of convenience in his favour. On the other hand, Defendant being the prior user of the name and style "Thalappakattu Biriyani Hotel" for several years, any interim order would affect the Defendant's right, trade and business. Defendant had also raised objection as to the maintainability of infringement suit [C.S.No.32 of 2011] filed by the Plaintiff.
14. Learned Judge has heard the applications filed both in the old suit [C.S.No.203 of 2007] and injunction application filed in C.S.No.32 of 2011. Upon consideration of rival contentions, learned Judge held that at the time when the Division Bench has passed the orders on 19.11.2008 [O.S.A.Nos.223 and 224 of 2008] on the consent of both parties, Defendant had only four shops and therefore, the consent given by the Plaintiff and the "interim arrangement" could be taken to be limited only to the circumstances prevailing at that time. Learned Judge further held that in view of the fact that the consent order was purely by way of "interim arrangement" and the same would cover only so far the shops then in existence [4 shops] and it would not go beyond and Defendant cannot seek protection for the outlets started after 19.11.2008. Insofar as the contention with regard to infringement suit [C.S.No.32 of 2011], learned Judge rejected the contention of the Defendant that infringement suit is barred under Or.2, Rule 2 C.P.C. Learned Judge held that Plaintiff is the registered Proprietor of the trade mark and that he was the prior user of the trade mark far ahead in point of time then used by the Defendant, learned Judge held that Plaintiff has established prima facie case. Pointing out that the consent given by the Plaintiff before the Division Bench was purely by way of temporary arrangement which has been misused by the Defendant by opening the outlets. On those findings, learned Judge allowed the applications O.A.Nos.48 and 49 of 2011 in C.S.No.203 of 2007 and granted injunction prohibiting the Defendant from using the name of "Thalappakattu" or any other name deceptively similar to Plaintiff's registered trade mark in the shops/restaurants opened after 19.11.2008.
15. Heard Mr.Arvind P.Datar, learned Senior Counsel appearing for Appellant-Defendant and Mr.R.Muthukumarasamy, learned Senior Counsel appearing for Respondent-Plaintiff.
16. Learned Senior Counsel Mr.Arvind P.Datar has raised the contention mainly interalia focussing on the following:-
Because order dated 19.11.2008 was passed by the Division Bench and the single Judge could not have gone into merits of the matter;
Impugned order is contrary to the statutory provisions of Trade Marks Act;
Irregularities in Plaintiff's obtaining registration of the trade mark.
In the infringement suit, there was no consideration of deceptive similarity or identical features and other principles for grant of injunction.
17. Mr.R.Muthukumarasamy, learned Senior Counsel appearing for Respondent-Plaintiff would contend that the mark "Thalappakatti" being predominant part of the trade mark and use of the essential part or predominant part of trade mark is an act of infringement. It was further submitted that when the Division Bench passed an order in O.S.A.Nos.223 & 224 of 2008 dated 19.11.2008, only four shops were in existence and the order of Division Bench could utmost extend only to the said four shops in existence on 19.11.2008 and the learned Judge rightly granted injunction restraining the Defendant from in any manner using the infringing mark "Thalappakattu" or any other name deceptively similar.
18. Order of Division Bench In O.A.Nos.298 and 299 of 2007 in C.S.No.203 of 2007, learned Judge granted temporary injunction on the ground that Plaintiff is the prior user of the trade mark and trading style on the finding that Plaintiff had established their long prior use of the trade mark with the result, the product in which they deal with viz., "Biriyani" prepared and served by the Plaintiff had acquired a great reputation in the market. Such a finding is very clear that the importance as to the word "Thalappakatti" refers to the owner who was wearing turban even 50 years ago and an article was published even in the year 1996 regarding the same. According to Plaintiff, they are the long prior user of the trade name inasmuch as they commenced the business from 1990 onwards and even much earlier from 1952 much prior to the commencement of the business by the Defendant. Learned Judge considered that at that point of time, the ultimate test as to who is the first user in the market. Ultimately, it was concluded that the Plaintiff had established that they are in the field long before the Defendant established their business. The Plaintiff also established that they acquired reputation in the market and therefore, a prima facie case was found in their favour and the application for injunction was allowed by the learned single Judge.
19. Learned Senior Counsel for Appellant contended that the order of single Judge in O.A.Nos.298 and 299 of 2007 in C.S.No.203 of 2007 came to be challenged in O.S.A.Nos.223 and 224 of 2008. Learned Senior Counsel would contend that without going into the merits of the case and on the basis of the suggestion made by the learned Senior Counsel for Defendant, Division Bench disposed of the appeals with an observation permitting the Defendant to change their present name in its name boards, wrappers as well as pamphlet to "Chennai Rawther Thalappakattu Biriyani" as an 'interim arrangement'. Since the controversy revolves upon the order of Division Bench, we may usefully refer to the relevant portion of the order of Division Bench which reads as under:-
"3. In the course of the hearing, it was suggested by us that any decision on the relative merits of the contentions of either party is likely to prejudice the contention of other party in dispute and therefore, it would be more appropriate to make the interim arrangement without prejudice to the right of both the parties. Accordingly, it has been suggested by the learned senior counsel for the appellant that as an interim measure, the appellant shall use the expression "Chennai Rawther Thalappakattu Biriyani" in the place of the present name and all such letters will be of equal prominence.
4. The learned senior counsel for the respondent stated that this order should only be considered as an interim arrangement and without prejudice to the contentions which have been raised by the respondent/plaintiff in the suit.
5. Accordingly, instead of going into the merits of the contention of either of the parties, we dispose of the appeals with an observation that the appellant will be permitted to change the present name in its name boards, wrappers as well as pamphlet as mentioned below in English and in Tamil and such letters will be of equal prominence:-
"CHENNAI RAWTHER Thalappakattu BIRIYANI"
@brd;id uht[j;jh; jyg;ghfl;L gphpahzp@
6. It is made clear that this is purely an interim arrangement without prejudice to the contention of both the parties in the suit as well as before the trade mark Registry. The appellant is directed to effect necessary changes in the name in the Board, wrappers, pamphlets etc., on or before the 3nd of this month.
7. Keeping in view the urgency expressed and the nature of dispute involved in the case, we request the learned single Judge to dispose of the suit on merits, as expeditiously as possible, preferably within a period of three months."
20. It is pertinent to note that though the Defendant took the matter on appeal before the Division Bench, the Division Bench did not set aside the findings rendered by the learned single Judge which is one of the vital factors to be taken into consideration. The Division Bench only stated that taking into consideration the concession given by the learned Senior Counsel for Defendant, as an 'interim arrangement', without prejudice to the contention of the parties, the Defendant shall use the word "Chennai Rawther Thalappakattu Biriyani".
21. The argument of learned Senior Counsel for Defendant that the Division Bench order empowered them to open new outlets under the name and style of "Chennai Rawther Thalappakattu Biriyani" cannot be sustained as the order of Division Bench was not one on merits, the Division Bench has not passed a considered order and it was only, as an "interim arrangement" based on the consent given by the counsel for the Plaintiff. Further, it was clearly stated that such an "interim arrangement" will continue till the disposal of the suit and the suit was also directed to be disposed of within a period of three months. Under no stretch of imagination, it can be stated that the order of Division Bench would empower the Defendant to start new outlets in the name and style of "Chennai Rawther Thalappakattu Biriyani". In fact, in paras (6) and (7) of the order of Division Bench, it was clearly indicated that it was only an "interim arrangement" between the parties till the disposal of the suit.
22. Contention of Appellant is that "interim arrangement" does not in any manner prohibit the Appellant from opening further restaurants or restricts opening of the stores and while so, the learned Judge erred in saying that the order of Division Bench could be taken to be limited only to four shops then existing. It was further contended that the Division Bench permitted to change the name as "Chennai Rawther Thalappakattu Biriyani" and the learned Judge failed to appreciate that all such new outlets opened by the Appellant are in strict accordance of the order of Division Bench passed by consent and on the agreement and suggestion of the Respondent and therefore, use of the name "Thalappakattu" amounting to honest concurrent use and the learned Judge erred in over looking the obvious facts.
23. By a careful reading of the above order of Division Bench, the order discloses that "interim arrangement" was in pursuance of the suggestion made by the Court itself. Before the Division Bench, learned Senior Counsel for Plaintiff has submitted that any such "interim arrangement" is without prejudice to the contention of both the parties in the suit as well as before the Trade Mark Registry. In our considered view, the consent given by the learned counsel for Plaintiff could only be in the then prevailing situation; prevailing situation being that the Appellant was running only four shops. After the order of Division Bench [19.11.2008], the Appellant had opened nine more outlets/shops.
24. Though the Appellant claims that at the time of Division Bench passing the order on 19.11.2008, he had 13 outlets, the same was not pleaded in the counter filed by the Appellant in O.A.Nos.298 and 299 of 2007 in C.S.No.203 of 2007. In fact in Para (7) of the grounds of appeal in O.S.A.Nos.223 and 224 of 2008, the Appellant himself has stated as " ... that the Appellant has a tremendous business and started four outlets at Chennai." When the matter was heard and when that was the pleading and facts before the Division Bench in O.S.A.Nos.223 & 224 of 2008, learned Senior Counsel for Plaintiff could not have given consent for more than four outlets of the Appellant then in existence. Under no stretch of imagination, it can be contended that Plaintiff gave consent for innumerable outlets to be opened by the Appellant.
25. We are of the view that the 'interim arrangement' was only with a view to ensure that running of the business of the Appellant in the then existing shops may not suffer. As rightly held by the learned Judge that the order of Division Bench [19.11.2008] could be limited only to the circumstance prevailing at that time i.e., four shops then in existence on 19.11.2008.
26. Whether the impugned order of learned single Judge amounts to varying/modifying the order of Division Bench - Mr.Arvind P.Datar, learned Senior Counsel for Appellant contended that the Division Bench permitted the Appellant to use the name "Chennai Rawther Thalappakattu Biriyani". Leaned Senior Counsel would further contend that the learned single Judge could not have gone into the matter and the order of learned Judge amounts to varying/modifying the order of Division Bench. The learned Senior Counsel for Appellant submitted that a paradoxical situation has arisen whereby the Division Bench has not restricted the user of the mark "Thalappakattu" for four shops and in variation of the same order, the learned single Judge restricts use of the name "Chennai Rawther Thalappakattu Biriyani" only for four shops. It was therefore mainly contended that the learned single Judge was not right in interpreting the order of Division Bench and arriving at a different conclusion.
27. The above contention cannot be countenanced. Plaintiff applied for registration of the mark and trading style "Thalappakatti Biriyani Hotel" on 23.12.2005 in Application No.1408388. By the order dated 22.09.2010, the Deputy Registrar of Trade Marks directed registration of the trade mark "Thalappakatti Biriyani Hotel" of the Plaintiff and issued certificate of registration on 23.09.2010. By the same order dated 22.09.2010, the Deputy Registrar of Trade Marks, dismissed the application filed by the Defendant and refused to grant registration of the mark "Thalappakattu" to the Defendant. As the Plaintiff had obtained the registration of trade mark, Plaintiff filed modification Petition to modify the order passed in O.S.A.Nos.223 and 224 of 2008 restraining the Defendant from using the infringing mark. The modification Petition came up for hearing on 06.01.2011 and after hearing the arguments, the Division Bench permitted the Plaintiff to withdraw the modification Petition and granted liberty to file an appropriate application before the learned single Judge. In Para (23) of the order, the single Judge has referred the order of Division Bench in M.P.Nos. 1 and 1 of 2010 in O.S.A.Nos.223 & 224 of 2008 dated 06.1.2011 granting permission to withdraw the Miscellaneous Petitions and granting liberty to file application before the single Judge. As pointed out by the learned Judge, Plaintiff has rightly withdrew the modification Petition with liberty to file a fresh application in C.S.No.203 of 2007. The reason being, after the disposal of the appeals in O.S.A.Nos.223 & 224 of 2008 [19.11.2008] the Division Bench has seized up the matter. Since the order dated 19.11.2008 was passed by consent, Petition for modification was not maintainable. The only manner in which Plaintiff could invoke jurisdiction of the Division Bench was by filing Review Application. Review application also could not have been filed, since the order dated 19.11.2008 was almost the consent order and the review of the said order would not satisfy the requirements of Or.47, R.1 C.P.C. For the foregoing reasons and considering that liberty was given to the Plaintiff, there is no merit in the contention that learned single Judge exceeded the jurisdiction in sitting over the order of Division Bench assailing the propriety of the impugned order.
28. Re-contention contrary to the statutory provisions Section 30 of Trade Marks Act, 1999 specifically excludes certain acts as not constituting infringement. Under Sec.30 (2) (c) (i) of Trade Marks Act, there is no infringement, if the use of the mark is in relation to goods and in respect of which the registered proprietor or the registered user conforming to the permitted use has applied the trade mark and has not subsequently removed or obliterated it, or has expressly or impliedly consented to the use of the mark.
29. Learned Senior Counsel for Appellant contended that usage of the mark "Chennai Rawther Thalappakattu Biriyani" by the Defendant is as per the consent order passed by the Division Bench in O.S.A.Nos.223 and 224 of 2008 which would fall under the purview of Sec.30(2)(c)(i) of Trade Marks Act, 1999. It was further argued that the learned Judge failed to consider that the consent order falling under the purview of Sec.30(2)(c)(i) of Trade Marks Act and never protested by the Appellant and while so, recantation of such consent order ought not to have been permitted by the learned Judge. It was further argued that the order of Division Bench dated 19.11.2008 permitting the Defendant to change the name "Chennai Rawther Thalappakattu Biriyani" is by consent i.e. permitted use falling within the ambit of Sec.30(2)(c)(i) of Trade Marks Act and while so, the order of injunction restraining the Appellant-Defendant from using the name "Chennai Rawther Thalappakattu Biriyani" is in clear violation of Sec.30(2)(c)(i) of the Act.
30. Section 30(2)(c)(i) of Trade Marks Act, 1999 contemplates express or implied consent to the use of the mark. As discussed earlier, the order dated 19.11.2008 cannot as such be taken as the consent order; but it was only an "interim arrangement". To say that Appellant-Defendant was so permitted to change the name as "Chennai Rawther Thalappakattu Biriyani", so that the Appellant may not then suffer from closure of four outlets then in existence. The concession shown by the learned Senior Counsel for Plaintiff cannot be taken to be implied or express consent to enlarge the same as "permissive user" falling within the meaning of Sec.30(2)(c)(i) of Trade Marks Act. In any event, the said consent could only be in respect of four outlets then in existence. In the interim arrangement, neither the Plaintiff nor the counsel would have so agreed for the innumerable future outlets opened or to be opened by the Defendant.
31. Infringement suit whether barred - Plaintiff filed application for registration of trade mark on 23.12.2005. By the order dated 22.09.2010, the Deputy Registrar of Trade Marks granted registration of trade mark and the trade mark certificate is dated 23.09.2010. As per Sec.23 of the Act, when the mark is registered it will deemed to have been registered as on the date of making application.
32. Learned Senior Counsel for Appellant contended that suit C.S.No.203 of 2007 filed was a composite suit both for (i) infringement as well as (ii) passing off. It was further submitted that the registration certificate issued on 23.09.2010 relates back to the date of application [23.12.2005] and therefore, Plaintiff could have well taken steps to amend the earlier suit and the second suit [C.S.No.32/2011] filed on the same cause of action is barred under Or.2, Rule.2 C.P.C. Learned Senior Counsel would further contend that prior suit C.S.No.203 of 2007 is also for infringement and after the grant of registration of trade mark, the defect is cured and in view of "Doctrine of relation back" the deeming provision under Sec.23 of Trade Marks Act comes into effect and therefore, the second suit for infringement is not maintainable and "Doctrine of relation back" deeming fiction under Sec.23 of Trade Marks Act is only for certain purposes. Learned Judge has elaborately considered this aspect and held that deeming fiction under Sec.23 of Trade Marks Act cannot be extended to the facts and we endorse the views of the learned Judge.
33. In a suit for infringement, Plaintiff has to plead (i) as to the trade mark in relation to his goods; and (ii) proprietorship. Registration of trade mark gives statutory right and title to the mark. The Act has put the owner or registered trade mark in a very exceptional position. Registration gives to the registered proprietor a statutory right and title to the mark. At the time when the suit C.S.No.203 of 2007 was filed, Plaintiff's application was pending with the Registrar of Trade Marks. While filing C.S.No.203 of 2007, Plaintiff could not have maintained the suit for infringement of trade mark. Sec.27(1) of Trade Marks Act makes it clear that no person shall be entitled to institution of any proceeding to prevent the infringement of an unregistered trade mark, though it is open to him to institute an action for passing off under common law.
34. As pointed out earlier, on the date of filing of the suit [C.S.No.203 of 2007], Plaintiff had no registration of trade mark. Therefore, he could not have maintained the suit for infringement of an unregistered trade mark. The new suit C.S.No.32 of 2011 is filed on a fresh cause of action viz., grant of registration certificate (23.09.2010) and infringement thereon and the statutory protection. We do not find any merit in the contention that new suit C.S.No.32 of 2011 would be barred under Or.2, Rule 2 C.P.C. Or.2, Rule 2 C.P.C. does not bar a subsequent suit as it is based on different and distinct cause of action. Referring to 2010 (10) SCC 141 [Alka Gupta v. Narender Kumar Gupta] and 2006 (6) SCC 207 [Om Prakash Srivastava v. Union of India], learned Judge has rightly held that the subsequent suit C.S.No.32 of 2011 is not barred under Or.2, Rule 2 C.P.C. We do not find any reason to take a different view.
35. Learned Senior Counsel for Appellant contended that amendment could have been well sought for in the earlier suit after the Plaintiff secured registration of trade mark. Reliance was placed upon (1967) 2 MLJ 468 [A.Abdul Karim Sahib v. A.Shanmugha Mudaliar] wherein Justice T.Ramaprasad Rao,J held as under:-
" ..... the statute law relating to infringement of trade marks is based on the same fundamental idea as the law relating to passing off. There are certain procedural differences between the two. But in substance and in effect, an action for passing off can easily be telescoped into an action for infringement and vice, versa".
Heavily placing reliance upon Abdul Karim Sahib's case, it was contended that Plaintiff could have sought for amendment on the principle that law relating to infringement are same as are governed by law of passing off. The above decision in (1967) 2 MLJ 468 was followed in the other decisions viz., 1984 (4) PTC 54 [Anglo Dutch Colour Varnishing Works v. Indian Trading house].
36. All those decisions arise prior to Code of Civil Procedure Amendment Act 22 of 2002 where the prevailing position was that an amendment application which does not alter or substitute a new cause of action may be allowed at any stage of the proceedings. Subsequent to Amendment Act 22/2002 of C.P.C., Court's power to allow application for amendment has been curtailed. By virtue of proviso to Or.6, Rule 17 C.P.C., no amendment of pleading shall be allowed after the trial had commenced, unless the Court comes to the conclusion that inspite of due diligence, party could not have raised the matter before the commencement of trial.
37. Admittedly, in this case by the time the registration of trade mark was granted on 23.09.2010, trial in C.S.No.203 of 2007 had already commenced. Therefore, as rightly pointed out by the learned Judge, option of seeking amendment of plaint was a risky one. Any amendment application would have been objected to by the Defendant on the ground that trial had already commenced and also that the same is based on new cause of action. Therefore, the objection as to the maintainability of fresh suit for infringement and fresh application for injunction cannot be sustained.
38. Rights of registered proprietor of a trade mark are very clearly defined in Sec.17 of Trade Marks Act which explicitly state that the exclusive right is in respect of the use of the trade mark taken as a whole. Sub-section (2) of Sec.17 enacts that when a trade mark -
1.contains any part, which is not the subject of a separate application by the proprietor for registration as a trade mark; or
2.is not separately registered by the proprietor as a trade mark; or
3.contains any matter which is common to the trade or is otherwise of a non-distinctive character, registration thereof shall not confer any exclusive right in the matter forming only a part of a whole of the trade mark so registered.
39. Drawing our attention to Sec.17 of Trade Marks Act, learned Senior Counsel for Appellant contended that Plaintiff's registration certificate is for a label mark consisting of a combination of a crude drawing of a turbaned man along with the caption "Thalappakatti Biriyani Hotel". It was submitted that as per Sec.17 of Trade Marks Act, the mark ought to be examined as a whole which has been completely bypassed by the learned Judge who has chosen to selectively treat the certificate as being for a word mark "Thalappakatti". It was further contended that the device of the drawing of turbaned man along with caption "Thalappakatti Biriyani Hotel" could only use it as an integrated form and Plaintiff cannot seek protection of the word mark "Thalappakatti" alone. Learned Senior Counsel would further contend that if at all the Plaintiff wanted statutory protection for the word "Thalappakkati", he should obtain separate registration for the word "Thalappakatti".
40. Learned Senior Counsel for Respondent-Plaintiff contended that the essential part of the registered trade mark is only "Thalappakatti" and if a person uses the trade mark's essential particulars and the Defendant has arbitrarily adopted the word mark "Thalappakattu" which amounts to infringement of Plaintiff's registered trade mark. As rightly contended by the learned Senior Counsel for Plaintiff the word "Thalappakatti" is a prominent part of the trade mark.
41. Referring to KERLY, LAW OF TRADE MARKS AND TRADE NAMES, 11th Edn. 1983], in (2000) 5 SCC 573 [S.M.Dyechem Limited v. Cadbury (India) Limited), the Supreme Court observed as under:-
"It is well settled that the plaintiff must prove that essential features of his registered marks have been copied. The onus to prove 'deception' is on the part of the plaintiff who alleges infringement. A mark is said to be infringed by another trader if, even without using the whole of it, the latter uses one or more of its "essential features". The identification of an essential feature depends partly on the Courts' own judgment and partly on the burden of the evidence that is placed before it. Ascertainment of an essential feature is not to be by ocular test alone; it is impossible to exclude consideration of the sound of words forming part of the whole of the mark. ( KERLY, LAW OF TRADE MARKS AND TRADE NAMES, 11th Edn. 1983, para 14.21." Thus, if a word forming part of a mark has come in trade to be used to identify the goods of the owner of the mark, it is an infringement of the mark itself to use that word as the mark or part of the mark, of another trader. (underlining added)"
42. In 2010 (44) PTC 293 (Del) [Kirorimal Kashiram Mktg. & Agencies Pvt. Ltd. v. Shree Sita Chawal Udyog Mill Tolly Vill] expression "Deer" was adopted in relation to rice. Referring to various case laws, in the said decision, the Delhi High Court held as follows:-
"8. .... the expression "Deer" is arbitrarily adopted with respect to the product rice and "deer" is a prominent part of the trade mark "Double Deer" of the appellant, similar to the prominent word mark Qilla in the case of Amar Singh Chawal Wala (supra). The respondent has also failed to give any satisfactory explanation as to why it adopted the expression "Deer" when there already existed a registered trade mark "Double Deer" of the appellant."
43. If the essential feature of the trade mark of Plaintiff have been adopted by the Defendant, the Defendant cannot contend that Plaintiff is not entitled to protection of the entire word mark and that there is no infringement of the entire mark. Essential feature in the mark is "Thalappakatti". According to Plaintiff, their grandfather was famous for his Biriyani and was also well known for the turban (Thalappa) which he tied around his head and he was associated with the "Thalappa" and he decided to name his first restaurant as "Thalappakatti Naidu Biriyani Kadai" and Plaintiff using the trade name since 1957 and maintaining the quality. Defendant having used the essential feature of the mark "Thalappakatti" is a clear case of infringement.
44. RecontentionIrregularities in obtaining registration Assailing the grant of registration, learned Senior Counsel for Appellant interalia raised the following contentions:-
Application was filed by the Private Limited Company "Thalappakatti Naidu Biriyani Hotel Private Limited" whereas the Deputy Registrar of Trade Marks has issued the certificate in the name of "N.Dhanabalan, D.Nagasamy, a Partnership Firm, Trading as 'THALAPPAKATTI NAIDU ANANDA VILAS BRIYANI HOTEL' 16, East Car street, Dindigul 624 001, Tamilnadu, Service Provider [Partnership Firm)" and the clarity as to the precise entity in which statutory right has been vested.
Grandfather of Sulaiman, one of the Partner of the Defendant M/s.Thalappakattu Biriyani and Fast Foods, a Partnership Firm, Mr.Hussain Rowther was the Chief of the Horse Regiment in the Palace of Raja of Sivagangai and his forefathers have migrated from Ramanathapuram and they being loyal to the King of Sivagangai and they were the only Muslims who were having access to the King of Sivagangai and who used to wear Turban or Tuft which is called in Tamil as "Thalapagai" and therefore all the senior members of their family were popularly known as "Thalappakattu Rawthers" in Chettinad which aspect was not properly considered by the Deputy Registrar of Trade Marks.
Many other persons are also using the name "Thalappakkatu" as their trade name and Plaintiff cannot claim exclusive right over the word "Thalappakatti".
45. Countering the above submissions, learned Senior Counsel Mr.R.Muthukumarasamy has submitted that the above aspects were considered by the Deputy Registrar of Trade Marks. As against the order of Deputy Registrar of Trade Marks dated 22.09.2010, Defendant has preferred an appeal before the Intellectual Property Appellate Board and the same is pending. Since the appeal is pending, we do not propose to go into the merits of the contention raised by the Appellant-Defendant.
46. Re-contention non-application of trade mark principles and principles for grant of injunction Learned Senior Counsel for Appellant contended that in the new suit for infringement [C.S.No.32 of 2011], learned Judge has not considered the principles applicable to trade marks and has also not considered the principle for grant of injunction like:- (i) infringement of trade mark; (ii) deceptive similarity or marks identical; (iii) delay and laches and (iv) balance of convenience and other principles.
47. Under Section 29(2) of trade marks Act a registered trade mark is infringed by a person who not being a registered proprietor or a person using by way of permitted use, uses in the course of trade - Learned Senior Counsel for Appellant contended that as per Sec.29(2) of the Act, a trade mark is infringed by a person who not being a registered proprietor or a person using by way of permitted use. It was submitted that by virtue of the order in O.S.A.No.223 and 224 of 2008, Defendant is using the mark "Chennai Rawther Thalappakattu Biriyani" and is a permitted user within the meaning of Sec.29(2) of the Trade Marks Act and therefore, there is no question of any infringement. As we have elaborated earlier, the order of Division Bench in O.S.A.Nos.223 and 224 of 2008 was only an "interim arrangement" and cannot amount to "permitted use".
48. At the time when the order was passed in O.S.A.Nos.223 and 224 of 2008 on 19.11.2008, Defendant had only four outlets at "Koyambedu Rountana, Vadalapani, Anna Nagar and Padi". Thereafter the Defendant is said to have opened atleast eight outlets at "Koyambedu, Thirumangalam, Ayanavaram, Virugambakkam, Mount Road, Arumbakkam, Egmore Railway Station and Anna Salai". Learned Senior Counsel for Appellant contended that after the order of Division Bench for well over a period of two years, Defendant had opened new shops and Respondent-Plaintiff has not raised any protest and the learned Judge has failed to consider the delay and laches on the part of the Plaintiff. It was further submitted that if the Plaintiff had given a prompt warning, it would have had its effect and the question of delay had been completely over looked by the learned Judge.
49. Delay simpliciter may be of no defence to a suit for infringement unless it amounts to abandonment. In the case of "registered trade mark" defence of delay is very limited, if at all available. Defence of "delay and laches" can be set up in equity. But in the case on hand, it cannot be put forth by the Defendant who had already lost the matter in the earlier round of litigation and was allowed to continue under the name of "Chennai Rawther Biriyani" by way of interim arrangement.
50. In 2004 (28) PTC 121 (SC) [Midas Hygiene Industries Pvt. Ltd. v. Sudhir Bhatia], the Supreme Court, while setting aside the order of the Division Bench, observed that the Division Bench was entirely wrong in vacating the injunction merely on the ground of delay and laches. The Supreme Court held that "the law on the subject is well settled. In cases of infringement either of trade mark or of copyright, normally an injunction must follow. Mere delay in bringing action is not sufficient to defeat grant of injunction in such cases. The grant of injunction also becomes necessary if it prima facie appears that the adoption of the mark was itself dishonest."
51. In AIR 2006 SC 3304 [Ramdev Food Products Pvt. Ltd. vs. Arvindbhat Rambhai Patel and others], as per MOU Respondents merely permitted to sell products of Appellant through retail outlets. But the Respondents, however, started manufacturing spices and marketing their own products under the trade mark deceptively similar to that of Appellant. In the said case, Respondents set up a defence plea of acquiescence on the part of the Appellant. In the said case considering the question of laches and delay and that the Respondents themselves taking recourse to judicial proceedings, cannot be permitted to set up the defence of acquiescence on the part of the Appellant and referring to Midas Hygiene Industries case and other decisions, the Supreme Court held as under:-
"108. The defence of acquiescence, thus, would be satisfied when the plaintiff assents to or lay by in relation to the acts of another person and in view of that assent or laying by and consequent acts it would be unjust in all the circumstances to grant the specific relief.
109. Kerr in his "Treaties on the law and Practice of Injunction", Sixth Edition at pages 360-361 states as under:
"Mere delay after knowledge of the infringement to take proceedings, not sufficient to call the Statute of Limitations into operation, or where the infringement continues, is not, it seems, a bar to the right of an injunction at the trial. Lapse of time unaccompanied by anything else is, it seems, no more a bar to a suit for an injunction in aid of the legal right than it is to an action deceit.
But delay may cause the Court to refuse an interlocutory injunction, especially if the defendant has built up a trade in which he has notoriously used the mark ...."
110. Specific knowledge on the part of the plaintiff and prejudice suffered by the defendant is also a relevant factor. [See Spry on Equitable Remedies, Fourth Edition, page 433].
111. Applying the aforementioned principles in the instant case, it is evident that the time gap between the issuance of the notice and filing of an application for grant of injunction was not a voluntary act on the part of the appellant herein. It had to wait for the outcome of various proceedings pending before different courts. The respondents having themselves taking recourse to judicial proceedings, as noticed hereinbefore, cannot now be permitted to set up the defence of acquiescence on the part of the appellant. Indisputably, in a case of infringement of trade mark, injunction would ordinarily follow where it is established that the defendant had infringed the trade mark and had not been able to discharge its burden as regard the defence taken by it."
Applying the ratio of the above decision, it is evident that Appellant continuing the business only as per the "interim arrangement". In respect of new shops opened after 19.11.2008, Appellant cannot now be permitted to set up delay or acquiescence on the part of the Respondent.
52. Insofar as the marks deceptively similar - In the earlier order dated 07.11.2007, learned Judge has considered this aspect of deceptive similarity and therefore not again elaborated upon the deceptive similarity. In our considered view, it does not affect the correctness of the order of learned Judge nor does it indicate non-consideration of the principle applicable to infringement of trade marks.
53. Learned Senior Counsel for Appellant contended that the word "Thalappakattu" essentially means a turban or a person wearing a turban and ordinary word used in Tamil language in different context in day today use and Plaintiff cannot claim monopoly in the word "Thalappakatti" which is a weak mark. It was further submitted that the learned Judge has failed to appreciate that in respect of weak mark, the prefix added is sufficient to distinguish the Defendant's mark from the Plaintiff's mark. Drawing our attention to the Brochure used by the Plaintiff and Defendant, learned Senior Counsel would contend that Plaintiff is using the emblem with human face said to be Nagasamy Naidu adorning "Vertical Nama" in the forehead whereas the Defendant is using a turban with the auspicious and holy number of Mohamed '786'. It was further submitted that Plaintiff is using the name "Naidu" which is known for a particular community and religion whereas the Defendant is using the name "Rawther" [Chennai Rawther Thalappakattu Biriyani] which is known for a particular religion viz., "Muslim". Learned Senior Counsel would further contend that the colour combination adopted by Plaintiff is "red"; on the other hand Defendant is using "yellow" and hence it is crystal clear that the business run by the Plaintiff and Defendant are identical; but the marks used are extremely different in style, form, colour, nature in all respects and it cannot be assumed or presumed that the public will be mislead to believe the hotel business run by the Defendant is similar to that of Plaintiff. Learned Senior Counsel for Appellant would contend that the learned Judge has failed to appreciate the distinction in both the marks and erred in saying that Defendant's mark "Chennai Rawther Thalappakattu Biriyani" is deceptively similar as that of "Dindigul Thalappakatti Naidu Biriyani Hotel" and has not at all considered the arguments advanced as to deceptive similarity.
54. Per contra, learned Senior Counsel for Plaintiff Mr.Muthukumarasamy would contend that the essential feature of the mark is the word "Thalappakatti" and the same has been copied and the marks are remembered by the significant detail like "Thalappakatti" and not by the prefixing words or colour combination adopted. Placing reliance upon 2010 (44) PTC 293 (Del) [Kirorimal Kashiram Mktg. & Agencies Pvt. Ltd. v. Shree Sita Chawal Udyog Mill Tolly Vill], learned Senior Counsel would contend that the essential feature of the trade mark to be considered and over all similarity of the word "Thalappakatti" is likely to mislead and cause confusion and the learned Judge both in earlier order dated 07.11.2007 and the impugned order dated 23.06.2011 has rightly held that the trade mark of the Defendant is deceptively similar as that of the Plaintiff.
55. Broadly speaking factors creating confusion would be (i) nature of the market itself; (ii) the class of customers; (iii) the extent of reputation; (iv) the trade channels and others. In (2001) 5 SCC 73 [Cadila Healthcare Ltd. v. Cadila Pharmaceutical Ltd.], the Supreme Court held that in an action for passing off on the basis of an unregistered trade mark generally for deciding the question of deceptive similarity the following factors are to be considered:
(a) The nature of the marks i.e. whether the marks are word marks or label marks or composite marks, i.e., both words and label words;
(b) The degree of resembleness between the marks, phonetically similar and hence similar in idea;
(c) The nature of the goods in respect of which they are used as trade marks;
(d) The similarity in the nature, character and performance of the goods of the rival traders;
(e) The class of purchasers who are likely to buy the goods bearing the marks they require, on their education and intelligence and a degree of care they are likely to exercise in purchasing and/or using the goods;
(f) The mode of purchasing the goods or placing orders for the goods; and
(g) Any other surrounding circumstances which may be relevant in the extent of dissimilarity between the competing marks.
Applying the above principles to the case on hand, in our considered view, the marks "Thalappakatti" and "Thalappakattu" are phonetically similar. Both the marks are used in non-vegetarian restaurants, nature of the consumer are of the same; the mode of purchase is either by eating or delivery by packets. Average person who goes to non-vegetarian restaurant is essentially generated by the word "Thalappakatti". The last alphabet ' i ' or ' u ' in Tamil ' o ' or ' L ' does not make much difference.
56. Essential features of two marks are to be considered - It is well settled that in order to come to the conclusion whether one mark is deceptively similar to another the broad and essential features of two marks are to be considered. They should not be placed side by side to find out any differences in the design and if so, whether they are of such character as to prevent one design from being mistaken for the other. It would be enough if the impugned mark bears such an overall similarity to the registered mark as would be likely to mislead a person. Essential feature of the Plaintiff's mark is "Thalappakatti" which according to Plaintiff that his grandfather who was famous for his Biriyani was also well known for the turban (Thalappa) he tied around his head. Further according to Plaintiff the uniqueness of this dish is its time tested recipe which uses the best of spices, meat and a special variety of rice. Defendant's mark "Chennai Rawther Thalappakattu Biriyani" is deceptively similar as that of Plaintiff. While passing the earlier order dated 07.11.2007, Plaintiff has established the prima facie case of infringement and the learned Judge has elaborately considered this aspect.
57. Insofar as balance of convenience, the learned Senior Counsel for the Appellant would contend that in all nine new shops, Defendant has employed number of persons and has also put up flex board and also provided uniform to the employees with the mark "Chennai Rawther Thalappakattu Biriyani" and at this distant point of time, if the Defendant is ordered to remove the name "Thalappakattu", Defendant would be subjected to great hardship. It was further submitted that if the Defendant later succeeds, it would be impossible to compensate him for the loss and on the question of balance of convenience also the order of learned Judge cannot be sustained.
58. Plaintiff has made out a strong case for protection of their mark "Thalappakatti". Only because as per the "interim arrangement", Defendant was allowed to change their name as "Chennai Rawther Thalappakattu Biriyani" for the four outlets then existing. Defendant knowingly adopted the impugned mark "Thalappakattu" and started new shops and now cannot contend that the balance of convenience is in their favour. In our considered view, deletion of the word "Thalappakattu" in respect of the restaurants opened after 19.11.2008, Defendant is not likely to suffer much. Even if the Defendant suffers some inconvenience in case if the Defendant ultimately succeeds, Defendant can adequately be compensated in terms of money. On the other hand allowing the Defendant to continue his trading with infringing mark "Thalappakattu" it would cause irretrievable injury to the Plaintiff.
59. Injunction is intended to preserve in status quo the rights of the parties which may appear on a prima facie case. Court must put into the scales the relevant considerations i.e. prima facie case, irreparable loss and comparative hardship. Exercising the discretion, the learned Judge has rightly directed the Appellant to remove the name "Thalappakattu" in respect of the shops opened after 19.11.2008. It cannot be said that there was improper or arbitrary exercise of discretion warranting interference by the Appellate Court. Defendant has not made out any substantial ground for interference with the well considered order of the learned Judge and the Appeals preferred by the Defendant [O.S.A.Nos.199 to 201 of 2011] are liable to be dismissed.
60. O.S.A.Nos.217 to 219 of 2011 - Being aggrieved by the refusal of injunction in respect of four outlets then existing, Plaintiff has preferred O.S.A.Nos.217 to 219 of 2011. In O.S.A.Nos.223 and 224 of 2008, as an "interim arrangement", Defendant was permitted to change the name "Chennai Rawther Thalappakattu Biriyani". Since the earlier suit C.S.No.203 of 2007 is pending trial, at this distant point of time, we are not inclined to interfere or modify the "interim arrangement" already made in respect of four outlets.
61. In the result, the Appeals O.S.A.Nos.199 to 201 of 2011 preferred by the Defendant are dismissed. Defendant is directed to remove the name "Thalappakattu" and other required changes in the shops opened after 19.11.2008 within a period of six weeks. The appeals O.S.A.Nos.217 to 219 of 2011 preferred by the Plaintiff are dismissed. Both parties are directed to co-operate with the trial Court for early disposal of C.S.No.203 of 2007. Consequently, connected M.Ps in all the appeals are disposed of. No costs.
bbr To The Sub Assistant Registrar, Original Side, High Court, Madras